Kermott v. Bagley

• Decision Date: 13 January 1910
• Parties: KERMOTT v. BAGLEY, County Judge.
• Court: North Dakota Supreme Court

19 N.D. 345

124 N.W. 397

KERMOTT

v.BAGLEY, County Judge.

Supreme Court of North Dakota.

Jan. 13, 1910.

Syllabus by the Court.

Chapter 183, p. 266, Laws 1909, which imposes upon district judges certain duties relative to the issuance of druggist's permits, is not unconstitutional, although such duties are held to be administrative and not judicial in character.

Such statute is not repugnant to section 109 of the Constitution of this state in depriving applicants for such permits of the right of appeal. Said section 109 is held not mandatory, but merely permissive, and, furthermore, it has no application to decisions in matters of a nonjudicial character.

Application by G. E. Kermott for writ of mandamus to Horace Bagley, County Judge. Writ denied.Butler Lamb (Palda, Aaker, Greene & Kelso, of counsel), for relator. Andrew Miller, Atty. Gen., Alfred Zuger and C. L. Young, Asst. Atty. Gens., for respondent.

FISK, J.

The relator makes application to this court for a writ commanding respondent, judge of the county court of McHenry county, to file relator's application for a druggist's permit, and to assume jurisdiction to hear and determine the same. The sole question involved is the constitutionality of chapter 183, p. 266, Laws 1909, which deprives county judges of the powers and duties heretofore granted and imposed upon them relative to the issuance of druggist's permits, and attempts to impose such duties upon the judges of the district courts. Relator's contentions are that chapter 183 aforesaid is unconstitutional: First, because it is an attempt to confer upon the district court, or the judge thereof, nonjudicial powers; and second, that it is repugnant to section 109 of the state Constitution, in that it deprives the applicant of the right of appeal granted by that section from the decisions of the district court.

The provisions of the Constitution relied upon by relator's counsel in support of their contentions are the following:

“Sec. 85. The judicial powers of the state of North Dakota shall be vested in the Supreme Court, district courts, county courts, justices of the peace, and in such other courts as may be created by law for cities, incorporated towns and villages.”

“Sec. 103. The district courts shall have original jurisdiction, except as otherwise provided in this Constitution, of all causes both of law and equity, and such appellate jurisdiction as may be conferred by law. They and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, quo warranto, certiorari, injunction, and other original and remedial writs with authority to hear and determine the same.”

“Sec. 109. Writs of error and appeals may be allowed from the decisions of the district courts to the Supreme Court under such regulations as may be prescribed by law.”

“Sec. 21. The provisions of this Constitution are mandatory and prohibitory, unless by express words, they are declared to be otherwise.”

Taking up relator's first contention that the duties attempted to be imposed upon the district judges under the statute in question are nonjudicial in the broad sense of the term, we are convinced that such contention is unassailable. The powers and duties thus attempted to be conferred are clearly administrative, rather than judicial, in character. They are akin to many other duties of an administrative character conferred upon boards or officers to examine and pass upon applications for licenses to practice medicine or dentistry, or to dispense intoxicating liquors in states which license such traffic. The duties imposed upon drainage boards under our statute are of a similar administrative character. While in the discharge of such duties the officer or board may be called upon to act judicially in a sense, the duties are no less administrative in character. If, as contended by respondent's counsel, such duties are judicial as distinguished from administrative, it would inevitably follow as a logical conclusion that it would be beyond the power of the Legislature to confer such duties elsewhere than upon the courts, as all judicial power is, by the Constitution, expressly conferred upon the various courts therein enumerated. That the Legislature can confer such duties upon administrative boards and officers cannot be doubted.

The many authorities cited by respondent's counsel merely go to the question that duties requiring the exercise of judgment and discretion are of a quasi judicial, and not of a mere ministerial, character. This is manifestly true, but we are not here confronted with any such proposition.

We deem it unnecessary to cite authorities in support of the foregoing. Our conclusion is that such duties as are sought to be conferred upon the district judges by the act in question are of an administrative character. This brings us to a consideration of the question whether, under our Constitution, it is within the legislative power to impose such duties upon district judges. Upon this question the courts are divided; the weight of authority appearing to be against such legislative power. The recent case of Bank v. Town of Greenburgh, 173 N. Y. 215, 65 N. E. 978, wherein the majority of the judges upheld the validity of a statute similar on principle to the one here involved, but which contains a very able dissenting opinion by Chief Justice Parker, concurred in by Judges Vann and Werner, furnishes good statements of the respective views of judges upon the question. See, also, Moynihan's Appeal, 75 Conn. 358, 53 Atl. 903;Tyson v. Washington County, 78 Neb. 211, 110 N. W. 634, 12 L. R. A. (N. S.) 350;In re Weston, 28 Mont. 207, 72 Pac. 512;State v. Brill, 100 Minn. 499, 111 N. W. 294, 639, 10 Am. & Eng. Ann. Cas. 425. The opinion of Elliott, J., in the latter case is very able and exhaustive, reviewing, as it does, the decisions of many courts upon this question, and in addition to the authorities cited in the opinion, and the valuable note thereto in 10 Am. & Eng. Ann. Cas. 425, we deem it unnecessary, as well as useless, to call attention to other cases with the exception of those collated in the valuable notes to Foster v. Rowe, 8 Am. & Eng. Ann. Cas. 595.

The various authorities must be read and weighed in the light of the respective state Constitutions in force where such decisions were rendered, which, of course, are controlling. As stated in the opinion in State v. Brill, supra: “All the states, except New York, Pennsylvania, Ohio, Wisconsin, Kansas, Delaware, North Dakota, and Washington, have adopted Constitutions which contain a distributing clause expressly providing for the division of governmental powers among three departments. All the states that have adopted this clause, except Rhode Island, Connecticut and North Carolina, have further provided that no person or persons exercising the functions of one department shall assume or discharge the functions of any other department. The Constitutions of all the states, except Rhode Island, Connecticut, New Jersey, North Carolina, Louisiana, New Hampshire, Massachusetts, New York, Virginia, West Virginia, and South Carolina, provide that the powers shall be separated, except in cases expressly directed or permitted. South Dakota provides ‘that the powers of the government of the state are divided into three distinctive departments, the legislative, executive and judicial; and the powers and duties of each are prescribed by this Constitution.’ Article 2. The Constitution of the United States and the Constitutions of New York, Pennsylvania, Ohio, Wisconsin, Kansas, Delaware, Washington, and North Dakota contain no general distributing clause.” After thus reviewing the various Constitutions the court further says: “Irrespective of the existence of a distributing clause, it is held that the creation of these departments...